We were all taught street survival tactics in Basic Training and in-service training. For that moment when the proverbial you-know-what hits the fan – we go into survival mode and rely on muscle memory and training to kick in.
Oddly, though, we rarely receive any courtroom survival training and tactics. We are more likely to face “battles” in the courtroom than on the street. Victory – a conviction – in the courtroom is in our grasp and many of us simply freeze. How can you survive in the courtroom? Better yet, how can you WIN?
Testifying in court is not a game of luck or chance. It is a game of skill. Testifying in court and winning cases depends on the written, verbal and non-verbal skills of the witness- YOU!
Viewed simply, a trial is nothing more than a contest of two or more competing stories. A good witness must understand that people, in general, understand, remember and restate events in terms of stories. As cops, we are masters of telling war stories to our fellow officers. When you hear a war story from a fellow officer, you feel like you are right there in the thick of the action. Their story triggers your own memories of life on the street.
But, we get in the courtroom and turn our war stories into a boring Joe Friday monologue – “just the facts”. We lose the jury and fall into the “survival” mode of testifying. We engage in “verbal combat” with defense attorney’s and come out swinging. And, sometimes we lose.
The number one rule of testifying is this: the more vivid the story the more likely you are to persuade the listener to your version of events. If pieces are missing from your story the listener, juror, will fill in the blanks from their own personal experiences or judgments of what must have happened.
A second simple rule of thumb is everyone in the courtroom already knows the story, at least their version, and is competing for the attention of the jury in order to persuade them one way or the other. The job of the witness, (in this case, you) is to keep the jury focused on your version of events and not the activity of the competing attorneys.
One of the greatest mistakes a witness makes is not being a master of non-verbal communication skills. Some studies have suggested, in a learning environment (like a trial) the listener (jurors) will follow the 70/30 rule. In other words, they are judging the credibility of the teacher (witness) on 70% of their non-verbal communication. Some experts on communication say the numbers are as high as 90/10. Specifically, jurors are looking for non-verbal signs of deception. Face it, in the jurors minds someone must be lying or they wouldn’t be sitting in the jury box listening to all these stories or what did or did not happen.
A good trial attorney will ensure their witness is conscientious of the message their non-verbal communication is sending. I have taught cops from all over the United States on testifying. I have prosecuted cases from jay-walking to aggravated murder and testified in hundreds of cases in city, State and Federal Court – and the principles of testifying are always the same. I utilize the acronym C.A.R.E when instructing witnesses on surviving in the courtroom.
Connect with the jury. Use eye contact when telling your story. Lack of eye contact is a sure fire non-verbal sign of deception. This is difficult for many witnesses, because we are taught to look at the person talking to us. So, most witnesses engage in a conversation with the attorney asking the questions. The attorney already knows the answer. A witness needs to tell the jury the story and involve them in the events.
In training police officer witnesses, I tell them to give an occasional head nod when talking to the jury, especially when you want them to agree with you on a certain point. It is vital for this to be effective, however, that the witness utilizes this technique first on a fact the jurors already know to be true.
For example, when describing the location of an event describe it in picturesque terms that paint an image for the jury. Don’t just give the name and address of where you were dispatched, but describe it in relation to other notable landmarks in the area. For example, the County General Hospital, that sits across the street from the County Fairgrounds and just a few blocks away from the local university.
You need to tell the jury these “facts” and give a simple head nod to gain their agreement. I guarantee some of the jurors will nod their heads in agreement with you. Then when you want the jurors to agree with you on a fact in controversy and nod your head, you have already proven your credibility on other matters and they are more likely to nod their heads in agreement now.
I used this very technique in a multiple defendant murder trial in Atlanta, Georgia in 1999. I used the tactics on the judge during the motion to suppress and drove the defense crazy. They even asked the prosecutor to tell me to stop doing it before the jury trial started, knowing I was going to endear myself to the jury. By the way, I was a cop from Ohio testifying in Atlanta and the technique still worked. I had the judge and jury nodding their agreement all day long. And, we won!
Articulate into descriptive words what you saw, heard, and did in order to arrive at your opinion. This is not the time to be Joe Friday, you know, “just the facts m’am”. But please use words the jurors can understand. If you must use technical jargon, translate it into plain English for the jury. You did not “exit” your vehicle – you “bailed out and started running after the defendant.”
Reflect on a question before you answer it. Lawyers are famous for rapid fire questioning, double negatives, and compound questions. They will also talk about everything but the evidence.
Terrance McCarthy, a highly respected Federal Public Defender in Chicago, once told me that 95% of all criminal defendants have no defense. So whatever you do, he teaches defense attorneys, don’t talk about the evidence. So listen to the question before you answer it and utilize a technique called deflect and redirect.
Through your careful reflection on the question, you the witness, can deflect the attorneys attempt to confuse the jury and redirect them back to your version of the facts. Repetition is the mother of all learning. The more the jury can hear your version of the facts, the more likely they are to remember it and come to believe it.
However, it all starts with the witness “hearing” the question and framing their answer appropriately. A real example: Defense attorney – “Officer, what color pants was my client wearing on the night you arrested him?” Officer – “I don’t recall the color, but I do remember I found the ounce of crack in his right front pocket.” End of questions from the defense attorney!
Emote with your voice and your non-verbal communication. Communicate your confidence, commitment, persistence, and enthusiasm for your side. This has a lot more positive impact than phrases like “I’m not sure”, “I don’t know” or “Maybe it’s possible”. If nobody can “see” the event from your tone, pitch and volume while telling your story – they certainly will not remember it days later when they are deliberating a verdict.
If your non-verbal communication is screaming – “I really don’t care about this case.”, then the jury will not trust or like you. I would get so upset with cops in a pre-trial meeting when I would ask – “What do you want to do with this case?” and they would respond, “I don’t care.” If you don’t care, why should the judge or jury?
Come with a winning attitude and the techniques to successfully WIN your case.
Pat Welsh is the Founder and President of PJ Welsh and Associates, LLC. Mr. Welsh is1982 graduate of the University of Dayton, School of Law and actively practiced law in Ohio from 1982-2012. He also served as an Assistant Montgomery County Prosecutor. Mr. Welsh retired in April 2012, as a Major on the Dayton Police Department, after a 26 year career in Patrol, Narcotics, and Investigations Divisions. A graduate of the FBINA and Police Executive Leadership College, Mr. Welsh specializes in law enforcement training, keynote speaking and coaching services. Mr. Welsh is also a recognized Expert Witness in State and Federal Courts on law enforcement related issues. Mr. Welsh can be contacted at www.CourtSurvival.com or [email protected].